HomeMy WebLinkAbout05-03-04
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INRE:
ESTATE OF LOY T. HEMPT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
ORPHAN'S COURT DIVISION
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NO. 21-77-231
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KALBACH OBJECTORS' BRIEF IN SUPPORT
OF OBJECTIONS TO FIRST AND FINAL ACCOUNT
I. INTRODUCTION
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Robert Hempt Kalbach, Sr. and his sons, Robert Kalbach, Jr. and Richard Kalbach (the
. "Kalbach Objectors") have filed Objections to the First and Final Account for the Estate of Loy
T. Hempt, Deceased and Residuary Trust Under Will ofLoy T. Hempt, filed by Accountant,
Gerald T. Hempt. The Kalbach Objectors are filing contemporaneously herewith detailed
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Proposed Findings of Fact and Conclusions of Law. The Proposed Findings of Fact set forth a
detailed factual background and scenario which will be summarized briefly herein. Further
. detail is set forth in the Proposed Findings of Fact, which are hereby incorporated by reference.
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It is undisputed that Gerald L. Hempt wears multiple hats. He is acting as the purported
Trustee of the Loy T. Hempt Residuary Trust1 and is a residual beneficiary of that trust. He is
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I Gerald L. Hempt was appointed a Trustee of the Loy T. Hempt Residuary Trust in 1996 in proceedings that were
never properly docketed, never properly noticed, and appear to have been designed to obscure and obfuscate his
appointment.
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the Guardian of the person and of the Estate of Jean Doris Hempt.2 He is also an intestate heir of
Jean Doris Hempt. Gerald L. Hempt is a long-time officer, director and substantial shareholder
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of Hempt Brothers, Inc. He is also a shareholder, officer and director of two other businesses,
Valley Land Company and C.A. Hempt Estate, Inc.3
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The Kalbach Objectors object primarily to two separate courses of conduct and decisions
undertaken by Gerald L. Hempt as Trustee of the Loy T. Hempt Residuary Trust. First, Gerald
L. Hempt conspired with Robert L. Freedman, Esquire, Esquire, for over a year, to manipulate
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calculations of "fair market value" of the family held businesses, leading to a purported trust
division under 20 Pa. C.S.A. ~7191. The purpose of this exercise was not to benefit the trust, but
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was pursued so that Gerald L. Hempt, as a Trust beneficiary, could grab exactly those Trust
assets he personally wanted to own, and in order to keep Robert H. Kalbach, Sr. out of any role
or further ownership interest in any of the family businesses.4
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Second, for years Gerald L. Hempt directed the payment of substantial money from the
Loy T. Hempt Residuary Trust to the Jean Doris Hempt Estate, when Jean Doris Hempt had
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absolutely no need for these funds. Gerald L. Hempt then used the ballooning balance of the
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2 Jean Doris Hempt is 77 years old and was adjudged to be an incapacitated person in 1985.
3 Hempt Brothers, Inc., Valley Land Company and C.A. Hempt Estate, Inc. are referred to at times herein as the
"family businesses." This is not meant to suggest that anyone with a "Hempt" surname has any inherently superior
claim or rights in the "family businesses." Indeed, Robert Hempt Kalbach and the other set of Objectors, W. Robert
Mark, Forrest H. Mark and Steven E. Mark, have the same claim ofHempt lineage as Gerald L. Hempt, albeit
through their Hempt mothers rather than a Hempt father. See Kalbach Ex. 2.
4 Several of the Freedman letters, discussed infra. reveal that the goals of George Hempt, Gerald L. Hempt's brother,
were also served in the trust division and allocation of assets. See. Kalbach Exs. 8, 10, 11, 12 and 14. George
Hempt, however, was not a Trustee.
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Jean Doris Hempt Estate as an excuse to seek Court permission to distribute money from the
Jean Doris Hempt Estate to himself personally, to his siblings, and (necessarily), to his Mark
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cousins. In undertaking these machinations, Gerald L. Hempt pursued a course of conduct by
which he could personally profit from income distributions without waiting for the death of Jean
Doris Hempt while, simultaneously, depriving Robert H. Kalbach, Sr., who is not a Jean Doris
. Hempt intestate heir, of twenty (20%) percent of the value of the transferred funds.
There can be situations in which recitation of an abbreviated or summary statement of
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facts, such as described above, makes matters appear worse than a fuller description of facts
might reveal. This is not such a case. On the contrary, this brief summary only highlights the
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egregious and brazen course of self-dealing, conflicts of interest and breaches of duty practiced
by Gerald L. Hempt as Trustee. As set forth in the comprehensive Proposed Findings of Fact
and as explained further herein, the details darkly underscore the outrageous nature of Gerald L.
. Hempt's conduct.
II. ARGUMENT
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A. GERALD L. HEMPT OWES STRINGENT FIDUCIARY DUTIES TO
ROBERT H. KALBACH, SR.
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The basic description of a trustee's duties and relationship with beneficiaries is set forth
in comment (b) to the Restatement (Third) Trust, ~2, wherein it states, in pertinent part:
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The trust relationship is one of many forms of fiduciary
relationship . . . [A] person in a fiduciary relationship to another is
under a duty to act for the benefit of the other as to matters within
the scope of the relationship . . .
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Restatement (Third) Trust ~2(b). This pristine statement of the relationship between a trustee
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and a trust beneficiary is elegant in its simplicity: a trustee must act for the benefit of the
beneficiary. A trustee is "under a duty to the beneficiary to administer the trust solely in the
interest of the beneficiary." In Re FlalZlZ's Estate, 365 Pa. 82, 73 A.2d 411 (1950).
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In Estate ofMcCredy, 323 Pa. Super. 268, 470 A.2d 585 (1983), the Pennsylvania
Superior Court stated that a fiduciary's duty of loyalty "prohibits both self-dealing and conflicts
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of interest." 470 A.2d at 597. The duty ofloyalty dictates that the trustee "must neither (1) deal
with trust property for the benefit of himself or third parties . . . nor (2) place himself in a
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position inconsistent with the interests of the trust." Id. The nature of the trustee's duty of
loyalty is summarized in In Re Noonan's Estate, 361 Pa. 26, 63 A.2d 80 (1949), wherein the
Pennsylvania Supreme Court stated:
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He that is entrusted with the interest of others, cannot be allowed
to make the business an object of interest to himself; because, from
the fraility of nature, one who has the power, will be too readily
seized with the inclination to use the opportunity for serving his
own interest at the expense of others for whom he is entrusted.
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In Re Noonan's Estate, 63 A.2d at 83 (citing, Beeson v. Beeson, 9 Pa. 279, 284 (
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)).
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In Noonan's Estate. the Supreme Court found that the sale of property by an executor to
his secretary was motivated by the executor's "convenience and benefit without regard for the
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rights of the beneficiary whose desire to pay the decedent's debts and retain the realty (whereof
he was the sole devisee) was arbitrarily and even deceptively ignored by the executor." Id. at 63.
The Supreme Court determined that, despite the lower court's finding that the price paid by the
. secretary was adequate, and there was no fmding of fraud, the record revealed a "plain and
unmistakable case of an executor's breach of his fiduciary duty with full knowledge of the
circumstances on the part of the improperly favored third party." Noonan's Estate, 63 A.2d at
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83.
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The Supreme Court in Noonan's Estate also determined that the executor was engaged in
self-dealing. The Court stated, "The test of forbidden self-dealing is whether the fiduciary had a
personal interest in the subject transaction of such a substantial nature that it might have affected
. his judgment in material connection." 63 A.2d at 83. The prohibition against self-dealing does
not concern itself with whether the fiduciary acted in good faith or bad faith. Rather:
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The prohibition against self-dealing is absolute; where the trustee
violates it, good faith or payment of a fair consideration is not
material. ... The situation is no different where the breach
consists of the fiduciary's marked preference of a third person over
the beneficiary in respect of a disposition of estate property. As in
the case of self-dealing, such conduct constitutes a violation of the
fiduciary's basic duty to the beneficiary.
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Id. (citations omitted).
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Similar duties were addressed in Estate ofMcCredv. supra, wherein it was alleged that
the trustee, an investment advisor, breached his fiduciary duty of loyalty and had a conflict of
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interest where he had substantial personal interests in the companies whose stock he purchased
or retained for the trust. The Superior Court stated that whether a trustee's personal interests
present a prohibited conflict of interest is a determination to be made on the facts of each case.
. The determination should be guided "by the Noonan standard prohibiting personal interest that
might affect the trustee's investment decisions on behalf of the trust." 470 A.2d at 599.
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The Superior Court in McCredv discussed the trustee's personal interests in the
respective corporations and made the following significant observations:
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When a trustee invests his personal pride and good name, as well
as his personal capital, in a corporation whose securities form a
substantial part of the trust corpus, he places himself in a position
where it is very difficult to remain inflexibly loyal to the trust. At
some point a trustee's personal ties to a company will compel the
conclusion that investment of trust assets in the company is
improper. When the point is reached, we do not stop to inquire
whether self-interest actually tinged the trustee's decisions for the
trust; the rule of undivided loyalty is not intended to be remedial of
actual wrong, but preventative of the possibility of it.
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Estate ofMcCredy, 470 A.2d at 599-600 (citations omitted).
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A trustee is also under a duty to deal impartially with the beneficiaries of the trust. In
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Estate of Sewell, 487 Pa. 379,409 A.2d 401 (1979), the Pennsylvania Supreme Court, quoting
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the Restatement (Second) of Trusts ~183, found it to be "axiomatic that '[w]hen there are two or
more beneficiaries of a trust, the trustee is under a duty to deal impartially with them.'" 409
A.2d at 402. In Estate of Pew, 440 Pa. Super. 195,655 A.2d 521 (1994), the Superior Court
stated that the same rule of impartiality applies "where the beneficiaries are successive, and
occupy the positions of income beneficiary and remainderman." Id., 655 A.2d at 542.
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Thus, under Pennsylvania law, Gerald L. Hempt, Trustee of the Loy T. Hempt Residuary
Trust, stood in a fiduciary relationship to Robert H. Kalbach, Sr., a beneficiary. He owed Robert
H. Kalbach, Sr. a strict duty of loyalty. He was prohibited from self-dealing with respect to the
assets of the Trust. He was prohibited from serving as Trustee where he had a conflict of
interest. He was obligated to deal impartially with the beneficiaries of the Trust. As Trustee,
Gerald L. Hempt was obligated to act for the benefit of Robert H Kalbach, Sr.. There can be
little doubt that Gerald L. Hempt not only administered the Loy T. Hempt Residuary Trust for
his own personal benefit, he administered the Trust specifically to the detriment of Robert H.
Kalbach, Sr..
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B.
GERALD L. HEMPT BREACHED HIS TRUSTEE DUTIES WITH
RESPECT TO THE DIVISION OF THE LOY T. HEMPT RESIDUARY
TRUST INTO THREE TRUSTS AND HIS ALLOCATION OF ASSETS
INTO THE THREE TRUSTS.
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1.
GERALD L. HEMPT ENGAGED IN SELF-DEALING
AND FAILED TO DEAL IMP ARTlALL Y WITH
ROBERT H. KALBACH, SR.
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The record in this case, particularly the correspondence from Robert L. Freedman,
Esquire to Gerald L. Hempt, and Mr. Hempt's own testimony, leaves little doubt that Gerald L.
Hempt engaged in self-dealing and breached his fiduciary duties with respect to Robert H.
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Kalbach, Sr.. It is undisputed that Gerald L. Hempt wanted to maximize his ownership interest
in the family businesses and seized upon the trust division provisions of20 Pa. C.S.A. ~7191 to
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attempt to achieve his personal goals. It is clear that Gerald L. Hempt sent Robert L. Freedman,
Esquire back to the drawing board multiple times until his personal allocation goals were met.
(See, generally, the Freedman letters, Kalbach Exs. 8-16. Kalbach Ex. 18 summarizes in chart
. form the allocation scenarios proposed by Robert L. Freedman, Esquire between March 1, 2001
and the final trust division document signed on or about July 12,2002 (but retroactively dated
April 25, 2002)). In none of these scenarios was Robert H. Kalbach, Sr. to receive any shares of
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Hempt Brothers, Inc., which was a clearly articulated, paramount goal for both Gerald and his
brother, George.s
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S This is not even a matter in dispute. Gerald L. Hempt freely admits this personal goal. He testified as follows:
Q. And is it accurate, then, that you and brother George would like to ensure that Robert Kalbach
didn't receive any of the Hempt Brothers stock held by the Loy Hempt trust?
A. Yes, that's correct.
N.T.SO.
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In all of Mr. Freedman's preliminary scenarios, until the final distribution, Robert H.
Kalbach, Sr. was to be allocated shares ofC.A. Hempt Estate, Inc. In March, 2001, Mr. Kalbach
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was to receive 6,000 shares of this corporation. In various subsequent scenarios, he was to
receive between 1,300 and 100 shares. In the final division, Robert H. Kalbach, Sr. received no
shares ofC.A. Hempt Estate, Inc. With respect to Valley Land Company, Robert H. Kalbach,
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Sr. was at various times and in various Freedman scenarios slated to receive anywhere between 6
and 20 shares. In the final division, he received no shares of Valley Land Company.
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The fundamental impediment initially blocking Gerald L. Hempt's acquisition goals in
allocating the family business stock was Mr. Freedman's recognition that under the trust division
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statute, 20 Pa. C.S.A. ~7191,6 he was required to distribute both the exact pro rata value of the
assets as well as the pro rata appreciation of the assets. Mr. Freedman was unable to accomplish
fully Gerald L. Hempt's personal goals using the initial valuations for the family businesses. He
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advised Mr. Hempt of this problem numerous times.' The solution for this impediment was
6 The statute in its current form reads as follows:
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~7191. Separate trusts.
(a) Without court approval. - A trustee may, without court approval, divide a trust into separate
trusts, allocating to each separate trust either a fractional share of each asset and each liability held by the original
trust or assets having an appropriate aggregate fair market value and fairly representing the appreciation or
depreciation in the assets of the original trust as a whole. If the division reflects disclaimers or different tax
elections, the division shall relate back to the date to which the disclaimer or tax election relates.
(b) With court approval. - The court, for cause shown, may authorize the division ofa trust into two
or more separate trusts upon such terms and conditions and with such notice as the court shall direct.
(c) Separate fund. - A trustee may, without court approval, set aside property in a separate fund prior
to actual distribution, after which income earned on the separate fund and appreciation or depreciation of the
property set-aside shall belong to the separate fund.
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The Kalbach Objectors address the legal challenges to the use ofthis statute under the circumstances ofthis case,
infra.
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obvious and eventually followed - manipulate ways to utilize lower share values for the family
businesses so that the desired allocations could be made. While most apparent in the valuation
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for Hempt Brothers, Inc., similar reductions were utilized in the "fair market value"
determinations utilized for Valley Land Company and C.A. Hempt Estate, Inc. The fair market
values of all three family businesses were significantly reduced before the final allocation in
. highly questionable and grossly improper ways. Each company is addressed below.
2.
THE FAIR MARKET VALUES USED BY THE
TRUSTEE IN THE STOCK DIVISION WERE
DELffiERA TEL Y AND IMPROPERLY
UNDERVALUED.
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Hempt Brothers. Inc.
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The improper machinations surrounding the valuation of Hempt Brothers, Inc. are
nothing less than preposterous. Mr. Freedman initially utilized the per share value ($990)
established at the time of Max. Hempt's death in 1999, as reflected in his federal estate tax.
. returns. The use of the $990 per share value was consistent throughout Mr. Freedman's various
7 See: Kalbach Ex. 8 (March 1,2001), "It was not possible to apportion all of the Hempt Bros. stock to you. . .
because it has a relatively high basis as compared to the other assets."
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Kalbach Ex. 10 (April 11,2001), "[T]his division is difficult to do because each beneficiary has to receive the
proportion offair market value and basis. . . it is impossible to get all of the Valley Land, Hempt Bros. and C.A.
Hempt stock into the right hands right now."
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Kalbach ex. 11 (May 7, 2001), "[I]t is not possible to get a large amount of anyone particular business into your
hands through a simple division of the Trust because of the different ratios between basis and fair market value of
each asset."
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· letters in 2001. (See Kalbach Exs. 8, 10, 11, 12, and 14). In April, 2002, for the first time, Mr.
Freedman utilized the alleged book value of Hempt Brothers, Inc. as of August 31, 2001. This
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value was determined by Mr. Nagy of Compass Capital Partners, who was advised by Hempt
Brothers, Inc. that the company had been advised by counsel that the shares were subject to a
1964 Shareholder's Agreement which required shares to be offered to Hempt Brothers at book
. value before a shareholder could sell them to a third party. The 1964 Shareholder's Agreement
obviously existed throughout 2001 when the $990 per share value was being utilized. Curiously,
it was Mr. Freedman who advised Hempt Brothers that the shares were subject to the
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Shareholder's Agreement. (N.T. 359).
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The valuation of Hempt Brothers, Inc. was subject to extensive testimony by two experts,
John S. Stoner for Objectors and Gabriel Nagy for Gerald L. Hempt. The work of these two
experts is summarized primarily in Kalbach Proposed Findings of Fact 177-210 and will not be
. repeated herein. Suffice to say that the initial methodology and many of the same assumptions
were used by both experts. In the final analysis, however, Mr. Nagy defaulted on and abandoned
his valuation methodology, and fell back to a simple calculation of "book value" on August 31,
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2001 as fair market value. He did this simply because Hempt Brothers told him that Robert
Freedman had told it that the stock was controlled by a 1964 Shareholders Agreement. 8
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8 One has to wonder, of course, why Mr. Nagy even bothered including his initial valuation work in his report once
he concluded that it didn't really matter anyway since, in this case, "fair market value" means book value.
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One could argue at considerable length why Mr. Stoner is correct and Mr. Nagy is not.
To afford proper relief (undo the trust division) the Master need not determine an absolute fair
market value for Hempt Brothers, Inc. What is absolutely clear is that the value used by Gerald
L. Hempt is wrong, fundamentally undervalues the stock, and thereby unfairly and improperly
rewards the separate Hempt family trust. The trust division and allocation of assets cannot stand.
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Two issues underscore why the alleged book value of $643.49 per share cannot control
the fair market value of the Hempt Brothers, Inc. shares as allocated by Gerald L. Hempt. First,
Mr. Nagy's own report recognized that Hempt Brothers, Inc. owns a significant amount of non-
operating assets, that is, assets owned by the corporation that have value but are not currently
utilized by the corporation in its revenue generating businesses. Exhibit 8.3 of the Compass
Report valued the non-operating assets at $7,300,064. This compares to the August 31,2001
book value for the entire company of $6,440,000. Hence, according to Mr. Nagy, the value of
the non-operating assets alone is almost a million dollars more than the fair market value of
the entire company! Such a valuation is preposterous.
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There was considerable conflicting testimony by the experts at trial concerning the fair
market value of a share of Hempt Brothers, Inc. Mr. Nagy and Mr. Stoner expressed different
opinions on the value of the Hempt Brothers, Inc. non-operating assets. Mr. Stoner determined a
total market value of non-operating assets of$II,022,310. Mr. Nagy took various exceptions to
this total, and concluded that the non-operating assets value of Hempt Brothers, Inc. as of
February 28, 2002 was "only" $8,781,295. Thus, Gerald L. Hempt's own expert testified that
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the non-operating assets value of Hempt Brothers, Inc., alone, exceeded his opined fair market
value of the entire company by over $2,400,000. While it may not be necessary for the Master to
make a determination of whether the non-operating assets value of Hempt Brothers, Inc. as of
February 28, 2002 was $8,781,295, or $11,022,310, or somewhere in between, it is abundantly
clear that in the face of this value range, it is patently absurd for Gerald L. Hempt to utilize a fair
market value of the entire company for stock allocation purposes of $643.49 per share (totaling
$6,440,000 for the entire company).
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The second factor which establishes conclusively that the per value share of $643.49
utilized by Mr. Freedman and Mr. Hempt in the asset allocation is patently wrong relates to the
valuation date. The trust was divided effective April 25, 2002. The valuation date for the Hempt
Brothers, Inc. stock utilized by Mr. Hempt was August 31, 2001, mid-way through the
company's fiscal year. Both Mr. Nagy and Mr. Stoner agreed that the best and proper valuation
date for an April 25, 2002 effective date would be the close of the company's prior fiscal year on
February 28, 2002. This was the valuation date utilized by Mr. Stoner. Mr. Stoner utilized
appropriate methodology and concluded that the fair market value of a share of Hempt Brothers,
Inc. stock on a minority interest basis was $2,239 per share. Mr. Stoner then recalculated his per
share value to account for new evidence that was introduced at the hearing for the first time
regarding the status of non-operating assets and concluded, nevertheless, that after accounting for
these changes, the per share value was still $2,147 per share.
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Mr. Nagy took the stand as Gerald L. Hempfs expert and offered a smorgasbord of stock
values from which to choose. His work papers were introduced as Hempt Exhibit 7. In addition
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to his previously opined book value per share of $643, Mr. Nagy testified that the book value per
share of Hempt Brothers, Inc. as of February 28,2002 was now $790, an increase of almost $150
per share in five scant months. He did not stop there. Mr. Nagy repeated the findings of his
. prior valuation that if the book value does not control, that the fair market value per share as of
August 31, 2001 was $790.9 Mr. Nagy then recalculated fair market value as of February 28,
2002, assuming that book value did not control. In this calculation, Mr. Nagy opined that the fair
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market value per share of Hempt Brothers, Inc. as of February 28, 2002 was $1,499 per share.
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Significant is that when Mr. Nagy utilized a valuation date of February 28,2002, which
he concedes to be the proper valuation effective date for an April 25, 2002 asset allocation, his
per share value of Hempt Brothers, Inc. stock is either $790 (which assumes book value controls)
. or $1,499. Gerald L. Hempt did not use either of these values when he allocated the Hempt
Brothers' stock in his allocation. Gerald L. Hempt's fair market value allocation as of April 25,
2002 is patently wrong, under any circumstances! Even in Gerald L. Hempt's view of the world,
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the correct value is either $790 per share, if Mr. Freedman is correct in telling Mr. Nagy that
book value controls, or $1,499 per share, if Mr. Nagy's calculations of fair market value are
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correct. It is $2,147 per share if Mr. Stoner's calculations are proper. The proper fair market
value varies widely depending upon the valuation date and the methodologies and the
assumptions utilized by the valuation experts. In any event, the value used by Gerald L. Hempt
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9 A value which, apparently by coincidence, equals the book value per share as of February 28,2002.
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in his asset allocation, $643, is patently wrong and this error is confirmed by his own expert. His
allocation of assets in the trust decision simply cannot stand.
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Further, Gerald L. Hempt's use of book value, contrary to the numerous factors
indicating a substantially higher fair market value, is based solely on a blind reliance on the
. Shareholder's Agreement dated October 19, 1964 among the stockholders of Hempt Bros., Inc.
and the corporation. The agreement provides that if any stockholder desires to transfer his stock
in Hempt Bros., Inc., he must offer it to the corporation for sale at book value. If the Corporation
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does not purchase the stock, the stock must be offered to the other stockholders at book value.
Any transferee. is subject to the agreement.
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However, paragraph 7 of the agreement specifically exempts from the transfer restrictions
transfers ". . . by gift, bequest or intestacy to or for the benefit of himself, his spouse, his issue,
. his brothers and sisters, and issue of his brothers and sisters." Such an exempt transferee holds
the shares subject to the agreement and further transfers are subject to the first refusal
requirement ". . . except by gift, devise (sic) or intestacy to or for the benefit of the stockholder
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who owned the shares at the time the agreement was entered into, his spouse, his issue, his
brothers and sisters, and issue of his brothers and sisters."
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The Accountant states:
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"Because each Hempt Bros., Inc. shareholder is bound by
the stock transfer restrictions in the buy-sell agreement, which caps
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the option price at book value, no reasonable investor would pay
more than book value for the shares. Therefore, the valuation used
in the Accounting at book value is appropriate."
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Reply to Objections, p. 30.
An assertion that no reasonable investor would pay more than book value, Le., book
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value "caps" fair market value, is erroneous for two principal reasons:
1.
The Trustee completely ignores the plain language in
Paragraph 6 of the agreement that the owner of the
common stock of Hempt Bros., Inc. is not obligated to sell
the stock at any time unless he so chooses, and can in fact
transfer the same freely to and among members of his
family;
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2.
Numerous cases have held that even where a transfer
restriction is in place, requiring an offer to the corporation
or other shareholder at book value, such restrictions do not
fix the market value of the stock, other than for estate tax
purposes, because of the retention value of stock to the
holder thereof.
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In Worcester County Trust Company v. Commissioner, 134 Fid. 578 (1st Cir., 1943), a
. decedent's estate held stock in a wool business subject to a share restriction prohibiting transfer
of the stock without first offering the stock to the directors of the corporation for redemption at
book value. The restriction had an exception thereto as follows:
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"The above restriction shall not apply to any transfer by the
executor. . . to legatees or next of kin of such deceased
stockholder in the distribution of his estate . . . ."
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The estate argued that the Board of Tax Appeals had erred in not accepting the book
value of$15.46 per share for Federal estate tax purposes, as opposed to the Commissioner's
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valuation of$35 per share. The Court of Appeals held that the share restriction was only one
factor in determining market value, but was not binding, saying as follows:
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"The taxpayers contend that the effect of this amendment is
to fix the market value of the stock at its book value.
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We cannot agree with the taxpayers that the amendment set
the value of the shares of their book value on the critical date. The
amendment did not prohibit sales of the stock except at book value,
nor did it fix book value as a call price at which at the behest of the
corporation the stock must be sold. It fixed a limitation on the
price obtainable by a shareholder for his shares only if he wished
to sell and if the corporation at that time wished to buy.
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It seems to us that in reason it must be said that the
restriction affected the market value of the stock, and this being so
it should have been considered as one of the 'relevant factors
having a bearing' on that question."
In E. Mathews v. U.S., 226 F. Supp. 1003 (B.D.NY 1964), a decedent owned 15% of the
. stock in G.x. Mathews Co. subject to a stockholders agreement that no shareholder shall "sell,
assign or transfer the shares . . . to anyone . . . without giving notice to the other parties . . . the
right to purchase said shares. . . at book value." A later amendment prohibited transfers but
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excepted from the restriction transfers ". . to lineal descendants . . ." The estate argued that this
agreement fixed the value of the stock at book value. The court held:
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1.
The agreement should be construed to permit testamentary
transfer free of the restriction; and
2.
The court refused to accord the agreement restriction
binding on the issue of fair market value, except as one of
the factors in determining fair market value, holding as
follows:
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"It results that because the Agreements did not require the
estate to make an offering of the stock at book value (or any other
fixed price) to the surviving stockholders or the Company when
the decedent died, the value of the stock is not, for estate tax
purposes, the book value of the stock.
. . .
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The instances in which a contract price is held to fix the
value of the stock for estate tax purposes are, naturally, only those
instances in which the contract price represents all the value the
estate can get from the stock if all parties involved act as their
manifest interest dictates."
.
Many of the cases that find restrictive agreements based on book value not preclusive as
to value are gift tax cases. See, for example, Kline v. Commissioner, 130 Fed. 742 (3rd Civ.
.
1942). Kline held voting trust certificates in his employer's stock. He transferred a voting trust
certificate for 4,500 shares to an irrevocable trust and valued the certificate at $12.68 a share
based on one-third of the book value of the stock, the price which an agreement prohibiting the
.
sale of the stock established for payment to Kline for his stock if he were discharged for cause.
The Commissioner ignored the restrictive agreement and valued the stock at $36 a share. The
.
court held the refusal of the Board of Tax Appeals to be bound by the book value of the stock in
the restrictive agreement to be correct, because the stock had retention value to Kline above and
beyond the book value.
.
18
.
.
.
Similarly, in Spitzer v. Commissioner, 153 Fid. 967 (8th Cir., 1946), Spitzer gave his wife
75 shares of Forest City Mfg. Co. and on a gift tax return valued the stock at book value. The
.
stock was subject to a restrictive stock purchase agreement whereby on Spitzer's death or
termination of employment, the corporation was required to purchase the stock for its book
value. The Court of Appeals affirmed the Tax Court's refusal to accord the restrictive agreement
. much weight in the valuation process, because the event fixing value at book value had not
occurred, saying:
.
"In each of the estate tax cases the critical event, the death
of the holder of the shares, which subjected the stock to purchase
for a price stated in the option, had occurred. In the circumstances
of these cases it was plain that a purchaser could not be found for
the shares at a greater price than that for which he would be
compelled to sell immediately upon acquisition. In the present
case petitioner at the time of the gift was 51 years of age, with a
life expectancy of twenty years. When the gift was made no one
could predict when petitioner might die, or retire without the
consent of the other executive stockholders. The critical event
necessary to occur in order to bring into play the provisions of the
contract fixing the price of the stock given by petitioner to his wife
had not occurred; and, by its terms, the contract might have been
terminated long before the occurrence of the critical event."
.
.
.
The concept of "retention value" appears in Baltimore Natl. Bank v. U.S., 136 F. Supp
642 (D.C. Md. 1955). This opinion involves two separate actions for refund, estate tax as to the
.
Estate of Henry Goldberg, and gift tax as to a donor, Abraham Krieger. Both cases involve
common stock of Gunther Brewing Co., Inc. which shares were subject to a restrictive
shareholders' agreement. The court's opinion as to the weight to be accorded such agreement is
. extensive and relevant to the Hempt Bros. Inc. agreement:
19
.
.
.
"In the 1930's two estate tax cases in the Second Circuit,
Wi/son v. Bowers, 57 F.2d 682, and Lomi v. Sugden, [36-1 USTC
, 9158] (2 Cir.) 82 F.2d 166, established the rule in that circuit at
least, that the existence at date of death of a valid enforceable
option, exercise of which would compel the executor to sell the
shares at the stipulated price, fixes their value for federal estate tax
purposes at the option price.
.
* * *
.
These cases stressed the sale value of the stock, giving little
if any weight to the retention value, i.e. the right of the legatee,
derived from the decedent at his death, to hold the stock subject to
the restrictive agreement and to collect dividends thereon. But the
retention value is important in both of the cases at bar, the estate
tax case as well as the gift tax case, since the certificates to be
valued were covered by deeds of trust, executed pursuant to the
provisions of the depository agreement, which permitted the
successive beneficiaries to hold the beneficial interest in the
certificates and to continue to receive dividends thereon, despite
the death of the respective grantors or the original beneficiaries,
until the termination of the trusts, without the necessity of selling
at the formula price fixed by the agreement.
.
.
* * *
.
In Worcester County Trust Co. v. Commissioner, [43-1
USTC, 10,029] (1 Cir.) 134 F.2d 578, the restriction was against
sale during life, but did not apply to transfers to legatees or next of
kin in distribution of a decedent stockholder's estate. In that
respect it was similar in effect though not in form to the agreement
in the case at bar, which permitted the creation of trusts to list
during the term of the agreement. The First Circuit held that the
retention value as well as the sale value should be considered; that
the restriction did not impose a ceiling on value for estate tax
purposes; but that since the restriction did affect the market value
of the stock it should be "considered as one of the 'relevant factors
having a bearing' on that questions." 134 F.2d at 582.
.
.
.
In gift tax cases, where the owner may continue to hold his
shares if he wishes to do so, the courts have emphasized the value
of the right of retention, and have held that such a restriction on the
20
.
.
.
right to transfer does not limit the valuation, but is a factor which
should be considered along with other elements affecting value."
* * *
.
The present and proper rule is that the specified price is not
controlling for estate tax purposes unless the restrictive provision
(1) prevents transfer of the shares during the holder's life at a
figure higher than the specified price, and (2) grants an option to
purchase, or requires a transfer, at that price on the shareholder's
death.
.
* * *
.
The restrictive agreement, however, is considered as one of
the relevant factors having a bearing on the question of value,
usually depressing but possibly enhancing the value of the shares.
Estate of Reynolds v. Commissioner, 55 T.C. 172 (1970), is an extensive estate tax and
. gift tax case involving inter vivos transfer by, and the estate of, Pearl Gibbons Reynolds as to
voting trust participation certificates for stock in a family controlled corporation, Kansas City
Life Insurance Co. A certificate holder wishing to sell his certificate first had to offer them to
.
other certificate holders and then to the company's directors at a formula value. The holder
could make a gift or "devise" of the certificate, but the donee or devisee was subject to the
.
preemption provisions. The Tax Court held that the voting trust agreement was at most a factor
in valuing the certificates for the following reasons:
.
"In particular, first offer provisions have been held to be
only a factor where the security was gifted without becoming
subject to the first offer provisions. . . where the first offer
provisions became effective only upon the death of the security
holder who was free to dispose of the security by sale or gift up
until death, . . . where the transferor was not, by reason of the first
offer provisions, obligated to sell unless he desired to sell .
21
.
.
.
.
In the instant case the certificates could be freely gifted or
devised although in the hands of the donee or devisee they would
remain subject to the preemption provisions. Furthermore,
petitioners themselves have shown that neither Pearl nor Angeline
intended to sell the certificates. Similarly, no independent event
could trigger the preemption provisions. Only if one of the
certificate holders desired to sell his beneficial interest in the
Company would the preemption provisions become operative.
.
.
One rationale for rejecting the formula price as the absolute
determinative of fair market value is that such a figure does not
represent the value of all of the rights inherent in the ownership of
a certificate. ...
.
In the present case, it is true that, for a period of time
.dependent upon the date of the voting trust's ultimate termination,
a certificate holder was denied two of the important indicia of
security ownership, viz., the right to vote and the right of
unrestricted transfer. However, a certificate holder still held other
important ownership privileges which constituted his multipartite
parcel of rights. He retained the right to receive dividends subject
to the never-exercised privilege of the trustees to deduct
administrative expenses from the dividends. Also, upon
termination of the voting trust the certificate holders were entitled
to recover the unrestricted shares that they had originally
deposited. "
.
.
A more recent Tax Court treatment of restrictive buy-sell agreements is found in Estate of
H. A. True. Jr. v. Commissioner, 82 T.C.M. 27 (2001), both an estate and gift tax case. The
.
Court reiterates and emphasizes the element of "retention value" in valuing business interests,
holding in part as follows:
.
.
"It is well settled that restrictive agreements, such as the
buy-sell agreements at issue in the cases at hand generally do not
control value for Federal gift tax purposes. At most, a buy-sell
agreement may be a factor to consider in determining gift tax
value.
22
.
.
.
* * *
.(
In estate tax cases, the purchasing individuals or entities
have immediately exercisable, valid, and irrevocable rights to
purchase the decedent's interest from the estate as of the valuation
date. The critical event (death) that subjects the stock to the
purchase right has occurred, and it is clear that the seller-estate can
receive no more than the formula price. . .. However, in gift tax
cases, the transferring stockholder or partner (putative donor) is
under no immediate obligation to sell. . .. Instead, he merely
stated terms if and when he decides to sell or transfer his interest.
Thus, the obligation to sell has not matured in the gift tax cases and
therefore cannot set a ceiling on transfer tax value.
.
.
Resale value is not the only factor to consider in
determining fair market value for gift tax purposes. Until the
transferor actually disposes of his interest, he is entitled to all the
rights and privileges of ownership (e.g., rights to receive dividends
and to decide when to dispose of his interest). See Harwood v.
Commissioner [Dec. 40,985], 82 T.C. at 261; Estate of Reynolds v.
Commissioner [Dec. 30,398],55 T.C. at 190; Baltimore Natl. Bank
v. United States [56-1 USTC, 11,576], 136 F. Supp. 642, 654 (D.
Md. 1955). Thus, courts found that gift tax fair market value
should include this "retention value", which the buy-sell agreement
price does not adequately capture."
.
.
In summary, it is readily apparent that the Trustee's use of book value to allocate the
2,123 shares of Hempt Bros., Inc. stock is just one more indication of the hostile, self-dealing,
.
and overreaching on the part of the Trustee to secure advantage to himself and the members of
his immediate family. The book value of Hempt Bros., Inc. does not reflect the value of
extensive real estate holdings, the value of the expensive machinery and equipment used in the
.
construction business, the value of quarry reserves, goodwill and going concern. The value to a
stockholder in Hempt Bros., Inc. is much greater than resale value. It consists of the incidents of
ownership such as:
.
23
.
.
.
1.
The right to dividends.
2. The right to participate in the proceeds of the sale on
liquidation of the entire business.
.
3.
The ability to transmit ownership to members of his family.
4. The ability to sell the shares to other members of the
Hempt family line, or to join with them in shareholder
actions to confront management misfeasance.
.
See also extensive expert opinion of John S. Stoner refuting book value as fair market value at
N.T.180-192.
.
Valley Land Comoany
.
The values used by the Trustee with respect to allocation of the stock of Valley Land
Company begins with an appraised value of the real estate of $4.7 million. (There are 100 issued
.
and outstanding shares of Valley Land Company.) For valuation purposes, Robert L. Freedman,
with the stroke of his pen, simply discounted this value by 45% "assuming that the federal and
state tax on the sale proceeds would be 45%". See Kalbach Ex. 1510 There are several
. fundamental problems with applying a discount of this type to the fair market value of the stock
of Valley Land Company. First, it assumes a hypothetical, that the undeveloped real property
that comprises the assets of the company would be sold. Valley Land Company has owned its
.
.
10 Mr. Freedman was mistaken in his testimony that he applied other transaction and settlement discounts to reduce
the value of Valley Land Company. He did, however, account for selling expenses when he valued C.A. Hempt
Estate, Inc. See attachment to Freedman letter of August 24,2001, Kalbach Ex. 13. Mr. Freedman's transmittal
letter of April 23, 2002 (Kalbach Ex. 15) is clear. The discount is based solely on assumed tax consequences of the
sale.
24
.
.
.
real estate since 1957. It has held the real estate for 47 years without selling it. The land is not
listed for sale with any real estate agent and the company has no current plans to sell the
.
property. There is simply no basis in the record for a valuation to be utilized that assumes a sale
of the land. Discounting the fair market value premised upon a hypothetical land sale is nothing
more than a manufactured reason to reduce the fair market value of the Valley Land Company
. stock for allocation purposes incident to the Trustee's trust division.
Further, Mr. Freedman is wrong in his assumed tax consequences. Federal and state
.
taxes on the hypothetical sale would approach 45% (because it is blended, the tax rate would
actually be 40.6%, see Stoner testimony at N.T. 220-222) if and only if Valley Land Company
.
was taxed at a C Corporation rate. However, Valley Land Company elected S Corporation status
two years ago. If the real estate were sold as an S Corporation, the built-in gains would not be
taxed at the corporate level but would flow through and be taxed at the individual tax rates in
. effect at the time. Under current tax rates, the tax consequences of the sale to the shareholder
would be somewhat less than 18% of the gain. 11
.
Further, the value of the 89 shares of the stock of Valley Land Company must be
determined under the unique <?ircumstances of this case, i.e., the 89 shares owned by the Loy T.
.
Hempt Residuary Trust represent the majority ownership and control of Valley Land Company.
.
II However, a sale in the next eight years would be taxed at the C Corporation rate even after the S Corporation
election because of the IRS ten-year look-back window.
25
.
.
.
If these shares were to be distributed upon the death of Jean Doris Hempt, in the absence of a
division and in a pro rata manner, the Valley Land stock would be owned as follows:
.
Robert H. Kalbach, Jr.
Mark brothers
17.8 shares
35.6 shares
53.4
.
Gerald L. Hempt
Hempt siblings
19.9 shares
26.7 shares
46.6
100.0
.
Thus the all important corporate control of Valley Land would rest in Petitioners but for
the outright confiscation of these shares by Gerald L. Hempt under the guise of a trust division.
.
For the significance in the commercial world of attaching a premium for control over
asset values in valuing the stock of a closely held corporation such as Valley Land Company.
.
See B02danski. Federal Tax Valuations. Warren. Gorham & Lamont, 1996 at ~4.03, pp. 4-26, et.
seq.
.
Thus, there is no legitimate basis to reduce the fair market value of Valley Land
Company 45%. Assuming no other liabilities (and none are identified in the record) the fair
market value ofa share of Valley Land Company would be $47,000 (appraised value of
.
$4,700,000 divided by 100 shares). This is the value that should have been used by the Trustee
in the trust division.
.
26
.
.
.
C.A. Hempt Estate. Inc.
.
In his preliminary allocation scenarios between April 11, 2001 and May 15,2001, Mr.
Freedman utilized a per share value of either $354.17 per share or $212.50 per share.12 The fair
market value utilized by the Trustee in his trust division is nothing more than an estimate
. prepared by Mr. Freedman in August, 2001, eight months before the effective date of the trust
division. See, Kalbach Ex. 13. Mr. Freedman, who never held himself out to be a valuation
expert (and there is no evidence of record that he was ever retained for valuation services),
.
justified the $104 per share value used in the stock division by stating to the Trustee, "The value
of the C.A. Hempt Estate is the median range of the values that I did about a year ago." This
.
median range applied a drastic 51 % discount to reflect both a 30% discount for lack of
marketability and a 30% discount for a minority interest. Mr. Freedman admitted, however,
"[T]here is nothing magic about the 30% numbers." (Kalbach Ex. 15, p. 2). There is simply no
. evidence in the record that the discounts utilized by Mr. Freedman in valuing the stock ofC.A.
Hempt Estate, Inc. are in fact appropriate and justified. There is no evidence of record that there
is any legitimate basis for the Trustee to utilize a value of $1 04 per share for the C.A. Hempt
.
Estate stock allocated in the trust division.
.
The unique circumstances of this matter show that no discounts for minority interest or
lack of marketability are proper. There are 24,000 shares of C.A. Hempt Estate, Inc. issued and
.
12 In his March 1,2001 scenario, Mr. Freedman used a value of$75.33 per share. This was based upon the value at
the time of Max Hempt's death in 1999 as reported on his federal estate tax return. This was quickly rejected in his
April 11, 2001 letter in light of a new estimated fair market value of $8.5 million for C.A. Hempt Estate, Inc.
27
.
.
.
outstanding. The record shows that the Petitioners Robert H. Kalbach, Sr. and the Mark family
now own together 8,000 shares. The Hempt family members now own 8,000 shares. The Loy T.
.
Hempt Residuary Trust (6,000) and Jean Doris Hempt (2,000) own 8,000 shares. After Jean
Doris Hempt's death, the ownership of her shares would be distributed in a pro-rata distribution
among the residuary beneficiaries of the Loy T. Hempt Residuary Trust so that the ownership of
. the 24,000 shares would be as follows:
.
Petitioners
HemptFamily
12,457 shares
11,543 shares
See Kalbach Finding of Fact #92. Obviously, the value of the 6,000 shares ofC.A. Hempt
. Estate, Inc. owned by the Loy T. Hempt Residuary Trust have a unique value above and beyond
that which can be determined by the usual appraisal methods for closely held stock. To the
parties in this litigation, the 6,000 shares represent control of the corporation, which Gerald L.
.
Hempt and Robert L. Freedman were bound and determined to move to Gerald L. Hempt.
.
3.
20 PA. C.S.A. ~7191 CANNOT BE UTILIZED TO SPLIT
THE LOY T. HEMPT RESIDUARY TRUST IN THE
MANNER DONE BY THE TRUSTEE IN THIS CASE.
The text of20 Pa. C.S.A. ~7191 in its current form is set forth, supra. At the time of the
.
death ofLoy T. Hempt, however, Section 7191 provided as follows:
.
28
.
.
.
~7191. Separate trusts. The court, for cause shown and
with the consent of all parties in interest may divide a trust into
two or more separate trusts. (emphasis supplied).
.
The history and intended purposes of this section are instructive in the evaluating its use by
Gerald L. Hempt to give to himself the specific trust assets he desired in a separate trust. The
Official Comment in 1949 explained the following:
.
.
It may serve a useful purpose in making it possible for
different investment policies to be followed for different groups of
beneficiaries whose needs are different. For example, one group
because of substantial income from other sources may be better
served by investment in low interest tax free bonds. Also
administrative difficulties may be reduced where there is a right to
invade principal, and where frequent accountings are required
because of changes of status of income beneficiaries . . . It is to be
noted that the division can occur only when all parties in interest
consent. Those not able to consent could be represented by
guardians or by trustees ad litem.
.
.
(Emphasis supplied).
Section 7191 was amended in 1992, again with an explanatory Official Comment:
.
.
This amendment gives the court greater discretion in
separating trusts by removing the requirement that all beneficiaries
consent to the separation. The consent requirement is often
impossible to meet since remaindermen may be unascertainable. 13
.
13 Of course, in the instant case, the remaindermen are easily ascertainable and their consents could have been
pursued. Gerald L. Hempt knew who the remaindermen were and had addresses for each of them. Many of them
attended the shareholder's meeting ofC.A. Hempt Estate, Inc. in 2001 where, with Mr. Freedman present, changes
in the Loy T. Hempt Residuary Trust could easily have been discussed. Instead, Gerald L. Hempt pursued his
personal goal in secret, springing it on the remaindermen when filing his Accounting.
29
.
.
.
This amendment is intended to aid in the qualification of trusts as
qualified shareholders for Subchapter S Corporation purposes as
well as for generation skipping tax purposes.
.
(Emphasis supplied). Obviously, the burden of splitting a trust was eased by the 1992
amendment. At the time ofLoy T. Hempt's death, splitting the trust required the consent of all
parties in interest and court approval, for cause shown. As of 1992, the court had greater
.
discretion, but a trustee could still not unilaterally divide a trust. As the Official Comment
reveals, the amendment was intended to aid trust administration purposes for federal tax
.
planning.
The requirement of court approval was removed by amendment in 1999. The 1999
.
Official Comment explained:
.
Division of a trust into separate trusts is becoming
relatively routine in light of changes in the Federal tax laws.
Accordingly, the amendment dispenses with the earlier
requirement of court approval. A 1992 amendment. . . dispensed
with the requirement of approval of all parties in interest. The
parties' interests are safeguarded because a division does not affect
their beneficial interests.
.
The set aside provisions are designed to ease compliance
with the Federal Generation-Skipping transfer tax.
.
What is abundantly clear is that Section 7191 was never designed so that a trustee could
allocate to himself in a separate trust those specific trust assets he wanted to receive. In the
instant case, the Trustee has identified no tax reasons or trust administration reasons to justify the
.
trust division. The only purpose for the trust division was so the Trustee could acquire as much
30
.
.
.
of the family business stock as he could, while keeping Robert H. Kalbach, Sr. out of Hempt
Brothers, Inc. Utilizing Section 7191 in this fashion may be clever, but it perverts the purpose of
.
the statute and is improper.
Division of the Loy T. Hempt Residuary Trust into separate trusts should be governed by
. the trust division rules that were in effect at the time Loy T. Hempt died, i.e., court approval and
with the consent of all parties in interest. Section 1926 of the Statutory Construction Act of
1972, 1 Pa. C.S.A. ~1926, provides:
.
~ 1926. Presumption against retroactive effect.
.
No statute shall be construed to be retroactive unless clearly and
manifestly so intended by the General Assembly.
Subsection (3) of Section 1922 of the Statutory Construction Act of 1972, 1 Pa. C.S.A. ~1922(3),
.
provides:
~ 1922. Presumptions in ascertaining legislative intent.
.
In ascertaining the intentions of the General Assembly in the
enactment of a statute the following presumptions, among others,
may be used:
* * *
.
(3) That the General Assembly does not intend to violate the
Constitution of the United States or of this Commonwealth. . .
At the time that Loy T. Hempt's Will was drafted, and at the time of his death,
.
Pennsylvania statutory and case law provided that residuary distributees had a right to demand a
31
.
.
.
pro-rata distribution in kind of personal property and securities if the sale thereof was not
required to pay debts. 20 Pa. C.S.A. ~3534; see, Minichello Estate, 368 Pa. 639, 84 A.2d 511
(1951); Vernon's Estate, 225 Pa. 368, 74 A. 236 (1909). Thus, the rights of the remaindermen in
this case, as well as the power of the trustee at the time ofLoy T. Hempt's death, would prohibit
the Trustee from dividing the trust and allocating assets as was done in 2002. The current
version of Section 7191 cannot be given retroactive effect. It cannot serve as authorization for
division of the Loy T. Hempt Residuary Trust into three separate trusts on a non-pro-rata basis
without the consent of all interested parties.
.
.
.
.
Further, Article I Section 1 of the Pennsylvania Constitution, entitled "Inherent Rights of
Mankind," defines as "inherent and indefeasible" the right of "possessing and protecting
property." The right of a testator to dispose of his property as he sees fit is a property right
entitled to the full protection of the law, including protection from the deprivation thereof
without due process of law by retroactive legislation in violation of Article I Section 9 of the
Pennsylvania Constitution. See, Borsch Estate, 362 Pa. 581, 67 A.2d 119 (1949), cited favorably
in Estate of Bernardi v. Bernardi (O.C. Div. Cumb.) 22 Fid. Rep. 282 (2001). The property
rights of Robert H. Kalbach, Sr. under Pennsylvania law which vested in him upon the death of
Loy T. Hempt were (1) to have the Loy T. Hempt Residuary Trust maintained intact absent
consent of all beneficiaries, and (2) to receive a pro-rata distribution of each of the trust assets
upon Jean Doris Hempt's death.
.
.
.
.
32
.
.
.
The 1999 amendment to Section 7191 cannot constitutionally authorize the division of
the Loy T. Hempt Residuary Trust on a non-pro-rata basis without the consent of the remainder
interests because such an application would (a) constitute the deprivation of a pre-existing
property interest in the remaindermen without due process of law, contrary to Section 1 of the
Fourteenth Amendment of the Constitution of the United States and Article I Section 9 of the
Pennsylvania Constitution and (b) be contrary to, and in violation of, Article I Section 17 of the
Pennsylvania Constitution which provides that no ex post defacto law nor any law impairing the
obligations of contracts shall be passed. See, Reznor Estate. 419 Pa. 188, 213 A.2d 791 (1963).
.
.
.
.
Even in its current format, division of a trust into separate trusts must allocate to each
separate trust either a fractional share of each asset and each liability (Le. pro rata) or "assets
having an appropriate aggregate fair market value and fairly representing the appreciation or
depreciation in the assets of the original trust as a whole." 20 Pa. C.S.A. ~7191(a). Gerald L.
Hempt chose not to distribute a fractional share of each asset to the three separate trusts he
created. Ifhe had done so, there would be no basis to contest the valuations used by the Trustee
in making the allocation since, no matter what the value is, each separate trust would have
received its appropriate fractional share. Stated differently, it would not matter if each share of
Hempt Brothers, Inc. was worth $643 per share or $2,146 per share since the asset would have
.
.
.
.
33
.
.
.
been divided appropriately. The same rationale would have applied to the stock of Valley Land
Company and C.A. Hempt Estate, Inc. 14
.
Gerald L. Hempt, of course, did not utilize a pro rata allocation. He attempted to allocate
separate assets to separate trusts based upon his tortured calculation of fair market value. This
.
was the hurdle with which Robert L. Freedman struggled so mightily. However, the entire intent
of the statute is subverted if fair market value cannot be readily determinable, as in the instant
case. IS The intent of Section 7191 in its current form, and the ability to safeguard the beneficial
.
interest of all beneficiaries, cannot be met when the fair market value of the allocated assets
cannot be readily determined. Mr. Freedman's own use, over time, of wildly fluctuating
.
assessments of fair market value underscores this difficulty. Moreover, the "expert battle"
between Mr. Stoner and Mr. Nagy, who both appear to be competent valuation experts, reveals
that the assessment of fair market value of a closely held family business is subject to wild
.
swings of valuation depending upon the assumptions, judgments and methodologies of the
expert. As explained by the Trustee's own expert, Mr. Nagy:
.
Q: It's true that two different qualified appraisals could use
different methodologies and arrive at different conclusions. Is that
correct?
.
.
14 Similarly, the value of the Allied Irish Bank stock ultimately allocated to Robert H. Kalbach, Sr., whether that
stock was alJocated at a proper fair market value, and whether that stock would be viable in the future would be
eliminated as issues since each separate trust would have received the appropriate fractional share of the stock and
the appropriate fractional share of the risk that the stock would drop in the future.
1 S As noted previously, the 1999 Official Comment assumed that the parties' interests would be "safeguarded
because a division does not affect their beneficial interest."
34
.
.
.
.
.
^- .~-~.----.
.
.
.
.
.
.
.
A: They could and have and inevitably will, as will lawyers
arrive at different conclusions as to a set of factual circumstances
as to what the legal results should be.
Q: You wouldn't call it an exact science, would you?
A.: It is not an exact science . .. I would be surprised to see a
wide variation in methodology. I would not be surprised to see a
difference in the choices the qualified appraisers make in applying
numbers and facts to their methodologies.
"
(N.T. 368, emphasis added).
Asa practical matter, the undisputed difficulties inherent in valuing the stock of closely
held businesses makes it impossible to determine fair market value to the degree of certainty
required by Section 7191. The safeguarding of the parties' interests in such a situation does not
and cannot exist. When the assets of a trust to be divided are comprised of the stock of closely
held businesses inherently incapable of precise valuation, Section 7191 cannot be utilized by a
Trustee to allocate those assets among separate trusts.
-,
4.
Gerald L. Hempt cannot hide behind an "advice of counsel"
shield when the advice is given to him to further his
personal interests, not the trust's interests, and he failed to
act in good faith.
The Pennsylvania Supreme Court has addressed the role of an attorney's advice to a
fiduciary. "We recognize that when a fiduciary acts upon the advice of counsel, such fact is a
factor to be considered in determining good faith but is not a blanket immunity in all
circumstances." Mintz Trust, 444 Pa. 189,200,2 A.2d 295, _ (1971). The Supreme Court
35
.
.
quoted Kohler Estate, 348 Pa. 55, 33 A.2d 920 (1943) in observing ''where a guardian or other
fiduciary acts in good faith under advice of a competent lawyer, he is not liable for mistakes of
law, if such there be, or for errors of judgment." Mintz Trust, 444 Pa. at 200-201. In In Re
Estate of Geniviva, 450 Pa. 54, 64, 675 A.2d 306, 311 (1996), the Superior Court explained,
"although the court will consider that the executor acted upon the advice of counsel in
determining whether he acted in good faith, this does not provide the executor with complete
immunity to a surcharge."
.
.
.
Gerald L. Hempt could not, reasonably and in good faith, rely upon the advice of Robert
L. Freedman, while ostensibly wearing his Trustee hat, when the advice of counsel was clearly
designed to achieve his individual and personal goals as a trust beneficiary. This issue highlights
the conflict of interest (among several other conflicts) Gerald L. Hempt faced as both Trustee
and beneficiary of the trust. When Robert L. Freedman wrote letter after letter to Gerald L.
Hempt explicitly detailing all of the efforts he was undertaking to achieve Gerald L. Hempt's
personal goals to acquire family business stock, it strains credibility past the bursting point to
suggest that this was Trustee advice of counsel behind which Gerald L. Hempt can hide to
escape the consequences of his self-dealing and breach of fiduciary duties. Gerald L. Hempt did
not act in good faith. Gerald L. Hempt, Trustee, did not receive advice of counsel that would
entitle him to blanket immunity.
.
.
.
.
.
36
.
.
.
C.
GERALD L. HEMPT BREACHED HIS FIDUCIARY DUTIES WITH
RESPECT TO HIS TRANSFER OF ASSETS FROM THE LOY T. HEMPT
RESIDUARY TRUST TO THE JEAN DORIS HEMPT ESTATE.
.
In Pennsylvania a trustee must act with such common skill, judgment and caution as
persons of ordinary prudence, discretion and intelligence under similar circumstances with
exercise in the management of their own estate. Denlinger Estate, 449 Pa. 393, 396, 297 A.2d
.
478,
(1972). Generally, courts will not guess the decision of a trustee who acts in good
faith. In Re Estate of Feinstein, 364 Pa. Super. 221, 527 A.2d 1034 (1967). The Estate of
.
Feinstein court recognized, however, that judicial intervention is appropriate if the trustee acts
dishonestly, with an improper motive (even though not a dishonest motive), fails to use judgment
or acts beyond the bounds of a reasonable judgment. 527 A.2d at 1 037( citations omitted). As
· noted before, the fiduciary is under a duty to administer the estate assets solely in the interest of
the beneficiaries and cannot engage in self-dealing. see, In Re Flagg's Estate, 365 Pa. 82, 73
.
A.2d 411 (1950), and clearly cannot act with an improper motive.
Restatement (Third) Trusts ~50 permits judicial control on a discretionary power
.
conferred upon a trustee to "prevent. . . abuse of the discretion by the trustee." Comment (a)
provides, "The powers of trustees and the discharge of trustee responsibilities regularly involve
the exercise of discretion, or fiduciary judgment, with which courts do not interfere except to
.
prevent abuse." Comment (b) emphasizes that a court will not permit abuse of discretion by a
trustee and reinforces that relevant fiduciary principles include, "the general duty to act,
.
reasonably informed, with impartiality among the various beneficiaries and interests."
37
.
.
.
The trust provision at issue herein authorizes the Trustee to "pay to or expend directly for
the benefit of [Jean Doris Hempt] such parts or all or none of the net income and principal as
.
trustees may determine in their sole and absolute discretion, to provide for [her] care, support
and welfare. . ." This broad grant of discretion does not provide absolute immunity. As
described in Restatement (Third) Trusts ~50, Comment (c):
.
.
It is contrary to sound policy, and a contradiction in terms, to
permit the settler to relieve a ''trustee'' of all accountability . . .
Once it is determined that the authority over trust distributions is
held in the role of trustee. . . words such as "absolute" or
"unlimited" or "sole and uncontrolled" are not interpreted literally.
Even under the broadest grant of fiduciary discretion, a trustee
must act honestly and in a state of mind contemplated by the
settlor. Thus, the court will not permit the trustee to act in bad
faith or for some purpose or motive other than to accomplish the
purposes of the discretionary power.
.
Further, Comment (e)(1) provides:
.
.
The trustee has a duty to act in a reasonable manner in attempting
to ascertain the beneficiary's needs and, under the usual rule of
construction, other resources that may be appropriately and
reasonably available for purposes relevant to the discretionary
power.
The circumstances of this case are unique. Jean Doris Hempt has been adjudged an
. incapacitated person, has resided for most of her 77 years in an institutional setting, and has had,
for many years, a narrow range of identified and defined expenses for her care, support and
welfare. At the same time, Jean Doris Hempt has her own significant personal estate, exceeding
.
$2,700,000, which contributes significant income to her. There is the further complication that
38
.
.
.
the remaindennen of the Loy T. Hempt Residuary Trust and the intestate heirs of the Jean Doris
Hempt Estate are similar, but in a very significant way not identical. Robert H. Kalbach, Sr. is
.
the only remaindennan of the Loy T. Hempt Residuary Trust who is not also an intestate heir of
Jean Doris Hempt. The practical effect of the relationship between the Loy T. Hempt Residuary
Trust and the Jean Doris Hempt Estate, and the identity of the remaindennen and intestate heirs,
. is that Robert H. Kalbach, Sr. loses twenty ($.20) cents of each dollar that is transferred from the
Loy T. Hempt Residuary Trust to the Jean Doris Hempt Estate. This interest is significant since,
from 1982 to 2001, $883,194 has been distributed from the Loy T. Hempt Residuary Trust to the
.
Jean Doris Hempt Estate. In the five (5) years since Gerald L. Hempt has acted as sole Trustee
(1997-2001), Gerald L. Hempt has distributed $315,500 to the Jean Doris Hempt Estate in excess
.
of the amount necessary for her care, support and welfare. (See Kalbach Ex. 6). In each of those
years, Jean Doris Hempt's income from sources other than the Loy T. Hempt Residuary Trust
exceeded her total expenses at the Woods School and miscellaneous expenses. For this time
.
period alone, Robert H. Kalbach, Sr.'s share of these excess and unnecessary distributions is
$63,100.
.
Significant in this case is that the Trustee of the Loy T. Hempt Residuary Trust, Gerald L.
Hempt, readily acknowledges that Jean Doris Hempt does not need trust income. In 2001,
. ' Gerald L. Hempt (and George F. Hempt) petitioned the Court of Common Pleas of Cumberland
County for pennission to distribute as gifts from Jean Doris Hempt's Estate over $800,000.16 In
· 16 Gerald L. Hempt requested permission for an immediate one-time gift of $675,000 together with annual gifts of
$10,000 per person (totaling $70,000) retroactive to 2000. (See Kalbach Ex. 4).
39
.
.
.
that Petition, signed under oath by Gerald L. Hempt, he acknowledged that "Jean Doris Hempt
has assets well in excess of those needed to live (sic) for her to live in her customary manner."
.
Thus, Gerald L. Hempt, who simultaneously is acting as Trustee of the Loy T. Hempt Residuary
Trust, beneficiary of the Trust, Guardian of the Estate of Jean Doris Hempt and an intestate heir
of Jean Doris Hempt, has used the distributions from the Loy T. Hempt Residuary Trust to the
. Jean Doris Hempt Estate in a manner designed to generate cash distributions to him without
waiting for Jean Doris Hempt's death, and at the same time deprive Robert H. Kalbach, Sr. of his
20% interest in the transferred funds. These distributions were made by Gerald L. Hempt
.
without regard for Jean Doris Hempt's other resources and without regard for whether the
distributions were necessary for her care, support and welfare. The distributions were made in
.
bad faith and with the improper motive to benefit himself at the expense of Robert H. Kalbach,
Sr. rather than to accomplish the purpose of the trust. The distributions are improper and Gerald
L. Hempt should be surcharged for the improper distributions.
.
D. GERALD L. HEMPT WAS NEVER PROPERLY
APPOINTED TRUSTEE OF THE LOY T. HEMPT
RESIDUARY TRUST.
.
Gerald L. Hempt was purportedly appointed as a successor co-trustee under the Loy T.
Hempt Residuary Trust by the Cumberland County Orphans' Court in 1996. The appointment
.
was made without proper notice to the parties in interest. The Petition to appoint Gerald L.
Hempt co-Trustee was captioned "In the Matter of Jean Doris Hempt, an Incompetent." (See
.
Kalbach Ex. 1, Stip. 16 and Ex. C). The Petition requested that the Orphans' Court appoint
40
.
.
.
Gerald L. Hempt as co-Trustee (with Max Hempt) of the George Hempt Trust and as co-
Guardian (with Max Hempt) of both the estate and person of Jean Doris Hempt. However,
.
buried in the Petition, without reference in the caption, without reference to a docket number and
without any notice to the remaindermen of the Loy T. Hempt Residuary Trust, is the request that
Gerald L. Hempt be appointed as successor co-Trustee (with Max Hempt) of the Loy T. Hempt
. Residuary Trust. Nowhere in the docket sheet for the Loy T. Hempt Residuary Trust is there any
entry of the Petition. (See Kalbach Ex. 19). It is a bald request unattached to any proper Loy T.
Hempt docket and instead camouflaged in Jean Doris Hempt proceedings.
.
Section 7101 of the Probate, Estates and Fiduciary Code, 20 Pa. C.S.A. ~7101 addresses
.
the notice required for the appointment of a successor trustee by the court and provides:
.
The court, after such notice to parties in interest as it shall direct,
may appoint a trustee to fill a vacancy in the office of trustee,
subject to the provisions, if any of the trust instrument.
28 Pa. C.S.A. ~7101 (emphasis added). It appears that the court did not direct that notice be
.
given to any of the parties in interest. However, based upon the caption, the docket entries and
the representations in the petition itself 7 it is clear that the court was not fully advised of the
action being undertaken and was not fully advised of the identity of parties in interest.
.
.
17 Paragraph 16 of the Petition erroneously states that the appointment of Gerald L. Hempt as a co-trustee". . . will
not adversely affect the interests of any other person. . ." when in fact the inherent conflicts of interest and self-
dealing on the part of Gerald L. Hempt as Trustee were then, and have continued to be, detrimental to the interests
of Robert H. Kalbach, Sr. as a remainderman of the Trust.
41
.
.
.
The language "all persons interested" of the prior statute was interpreted to include
"persons having an 'prospectivet interest as well as those having a 'presenf interest in the trust
.
. .." In Re Stolzenbachts Estatet 346 Pa. 74t 78t 29 A.2d 6 A. (1942) (citing In Re McCaskeyts
Estatet 293 Pa. 497t 505t 143 A. 209t _ (1928)). When Section 7101 was enacted in 1949t
the Official Comment discussed a notice requirementt inter aliat and provided as follows:
.
.
The requirement for such "notice to parties in interest as it shall
direct" is intended to preserve existing case law as illustrated in
McCaskefs Est.t 293 Pa. 497t 307 Pa. 172t and Zerbev Est.t 356
Pa.2.
In McCaskevts Estatet the Pennsylvania Supreme Court reversed the lower courtts
appointment of the successor trustee where the lower court appointed the successor trustee
.
without notice to the parties in interest. In Re McCaskevts Estate, 307 Pa. 172t 177t 160 A.2d
707t 708 (1932) ("McCaskey's Estate III The Supreme Court had previously addressed the
. appointment of successor trustees in the same estate in In Re McCaskeyts Estatet supra
("McCaskey's Estate r) and the Supreme Court cited its prior opinion in McCaskey's Estate I
when it stated as follows:
.
.
What we decide is that the course pursued in making the present
appointment was wrongt all the parties in interestt present and
prospectivet are entitled to suggest the names of those whom they
prefer for trusteest and therefrom the court should selectt if of
opinion they are thoroughly fit, a sufficient number who are not
unfriendly to the life tenants, and yet will not permit anything to
interfere with their duty to preserve the principle intact for the
benefit of the remainderman.
.
42
.
.
.
McCaskey's Estate II, 160 A. at 708. The right of the parties in interest to recommend successor
trustees to the court for consideration is recognized as.an important right. Appeal of Lancaster,
.
111 Pa. 524,4 A. 333 (1886) ("If a majority of the interested persons chose a trustee, the court
ought not to act unless the minority appear or have notice. The minority may assent, or give
information that the majority present an unfit person . .. Where all parties have been warned,
. the court is well advised for judgment.")
It is clear that in the 1996 Petition the court could not have been "well advised for
.
judgment" since there was no notice to the parties in interest and the Petition itself was
misleading.
.
Further, Pennsylvania Orphans' Court Rule 12.6 provides as follows:
.
(a) A petition for the appointment of a trustee may be filed by
any party in interest and shall set forth:
* * *
.
(4) The names, addresses and relationships of all parties
in interest and that those who have not joined in or consented to
the petition have been given notice of the intention to file the
petition, or the reason for failing to give such notice;
.
(5) The name and address of the proposed trustee and
his relationship, if any, to any party in interest and his interest, if
any, in the trust.
The Petition did not provide the names, addresses and relationships of all parties in interest for
· the court to review. The Petition did not include a copy of the Loy T. Will. (See Cumberland
43
.
.
.
County Orphans' Court Rule 12.6-1, which requires that a copy of the trust instrument be
attached as an exhibit to the petition.) Gerald L. Hempt's appointment as trustee was improper
.
and his continued service in that role is improper.
E. GERALD L. HEMPT MUST BE REMOVED AS
TRUSTEE.
.
As set forth above, Gerald L. Hempt was never properly appointed Trustee of the Loy T.
Hempt Residuary Trust. The Orphans' Court may remove a trustee whenever the interests of the
· trust are likely to be jeopardized by the trustee's continuance in office. In Re Croessant's Estate,
482 Pa. 188,393 A.2d 443 (1978). The removal is within the discretion of the court. Scientific
.
Living v. Hohensee, 440 Pa. 280,270 A.2d 216 (1970). The court is entitled to distinguish
between fiduciaries named by the settlor and those appointed by the court. In Re Croessant's
Estate, supra.; In Re Francis Edward McGillick Foundation, 547 Pa. 194,642 A.2d 467 (1994).
.
While "mere friction between a beneficiary and a trustee is generally insufficient to
remove a trustee, actual hostility is a ground for removal. In Nassar's Estate, 467 Pa. 325, 356
.
A.2d 773 (1976), the Court stated:
.
The record of this case clearly demonstrates that Joseph [trustee]
and Nasssar [beneficiary] were hostile to one another. Joseph
represented to the orphans' court that he had been "harassed" by
Nassar, that Nassar had called him a "liar and indicated that he was
not doing what was right" and that Nassar had "made a great
number of many unnecessary requests and rather foolish requests
. .." Joseph attached Nassar's motives and judgment several times
at the hearing. Nassar, on his part, indicated that he believed that
44
.
.
.
.
Joseph was not complying with either the terms of the trust or
settlor's intent. These feelings on both sides amount to much more
than mere friction.
.
See also, In Re Price's Estate, 209 Pa. 210, 58 A. 280 (1904) ("While inharmonious relations
between trustee and cestui que trust, not altogether the fault of the former, will not generally be a
sufficient cause for removal, yet where they have reached so acrimonious a condition as to make
.
any personal intercourse impossible, and to hinder the proper transaction of business between the
parties, a due regard for the interests of the estate and the rights of the cestui que trust may
.
require a change of trustee.")
Gerald L. Hempt has already admitted the existence of these conflicts that are much more
. than "mere friction." In his Reply to Objections, he states:
.
Pasze 17
"Trustee believed that all parties would benefit from the trust
division. The trustee did not distribute any stock of the family
businesses to the new trust for Kalbach and his issue because those
businesses had been managed by the Max Hempt family, not by
the Kalbach family, and relations between the two families have
not been easy. In addition, the Kalbach family runs a business that
competes with Hempt Brothers, Inc., the primary family business."
.
Page 31
.
Trustee has been a shareholder of Hempt Brothers, Inc. for 36
years and an employee, officer and director for nearly as many
years. Trustee has a genuine and valid concern that Hempt
Brothers, Inc. not suffer from constant disagreement among its
shareholders. Objectants' descriptions of Trustee's actions as
"manipulative," "disingenuous," and "abusive" do not bode well
.
45
.
.
.
for Objectants ever being cooperative shareholders in a family
business managed by Trustee.
Page 43
.
The trust division benefits the Hempt family, the Mark family and
the Kalbach family. The Hempt family benefits by not having a
minority stockholder in the family businesses with whom their
relations have never been easy.
.
As set forth, supra, Gerald L. Hempt also has a conflict of interest, and has admitted as
much, in his Reply quoted above. In Bane's Estate, 452 Pa. 388, 395, 305 A.2d 723, 727 (1973),
.
the Pennsylvania Supreme Court stated, "Where a conflict of an interest or self-dealing is
apparent from the circumstances, there is no need to demonstrate that the fiduciary acted in bad
faith or with fraudulent intent." In the instant matter, Gerald L. Hempt's self-dealing and
. conflict of interest are apparent. Further, in his position as Trustee, Gerald L. Hempt has
repeatedly (and admitted as much) made decisions regarding trust assets which he believes to be
in the best interests of Hempt Brothers, Inc., a corporation in which he is a substantial
.
shareholder, officer, director and employee. This conflict of interest, as well, justifies his
removal as Trustee. His long-term pattern of self-dealing, partial treatment, and improper
.
motives regarding the Loy T. Hempt Residuary Trust amply demonstrate that his continued
service in that role is unthinkable. It is a course of continued misconduct that cries out for relief.
.
F.
GERALD L. HEMPT MUST BE SURCHARGED.
A surcharge is the "penalty for failure to exercise common prudence, common skill and
.
common caution in the performance of fiduciary duties." In Re Estate of Dobson, 490 Pa. 476,
46
.
.
.
484, 417 A.2d 138, _ (1980). Surcharge is awarded to compensate beneficiaries for loss
occasioned by a fiduciary's breach of one or more of the duties owed to them. Dobson, supra. If
the breach arises from a conflict of interest or self-dealing, both of which are apparent herein, a
loss to the estate is not even required to give the beneficiaries a remedy against the fiduciary.
Estate ofMcCredy, supra. Where a fiduciary commits "patent error," the burden shifts to the
fiduciary to present evidence to demonstrate prudence. In Re Estate of Campbell, 692 A.2d 1098
(pa. Super. 1997). In the instant case, Gerald L. Hempt's payment of funds to the Jean Doris
Hempt Estate in total disregard of her other resources and what was necessary to provide for her
care, support and welfare, should be considered such a patent error that shifts the burden and
requires Gerald L. Hempt to demonstrate his prudence.
.
.
.
.
.
At a minimum, the surcharge against Gerald L. Hempt should be the $315,500 which he
personally directed to be paid from the Loy T. Hempt Residuary Trust to the Jean Doris Hempt
Estate from 1997 to 2001 which, is demonstrated above, was absolutely unnecessary to provide
for Jean Doris Hempt's care, support and welfare. Because of his admitted long-term
involvement and absence of any interim accounting by predecessor trustees, he should, in all
fairness, be surcharged the total amount of overpayments, which exceeds $800,000.
.
.
Further, Gerald L. Hempt clearly used trust assets to pay Robert L. Freedman for legal
services which were performed for the benefit of Gerald L. Hempt, personally and individually,
rather than for the Loy T. Hempt Residuary Trust. At the time that the Accounting was filed,
these payments totaled $41,215.31. (Accounting, pp. 28-30). Payment of these sums is another
47
.
.
.
.
such "patent error," since it was done for the Trustee's personal benefit, that requires shifting of
the burden to establish prudence to Gerald L. Hempt. These improper payments have
undoubtedly continued since the Accounting was filed, so the Trustee must further be ordered to
account for all subsequent payments to Mr. Freedman and his law firm.
.
.
Robert H. Kalbach, Sr. is also seeking an award of counsel fees incurred as a result of the
need to challenge the Trustee's actions. An award of counsel fees is subject to the discretion of
the Court. In Re Estate of Geniviva, 450 Pa. Super. 54, 675 A.2d 306 (313, alloc. den. 546 Pa.
666, 685 A.2d 545 (1996)). See, Brennan Estate, 17 Fid. Rep. 2d 311 (D.C. Bucks 1997) (where
the executor exhibited hostility to objectant, deliberately evaded fiduciary duties, and attempted
to divert estate funds to himself and his friend, the actions were obdurate, vexatious and in bad
faith, justifying surcharge for part of counsel fees incurred by beneficiary). Because the legal
fees and expenses paid by Robert H. Kalbach, Sr. were necessary in order to correct the grossly
improper and wrongful acts of the Trustee in managing the Loy T. Hempt Residuary Trust, an
award oflegal fees and expenses is appropriate. A statement of these fees and expenses will be
subsequently filed in a timely manner.
.
.
.
.
.
.
48
.
.
.
III. CONCLUSION
There can be doubt that the Trustee, in his actions dividing the Loy T. Hempt Residuary
. Trust into three separate trusts and allocating assets for his personal benefit and to the specific
detriment of Robert H. Kalbach, Sr., and in his course of conduct in distributing funds from the
Loy T. Hempt Residuary Trust to the Jean Doris Hempt Estate in total disregard for what was
.
necessary for her care, support and welfare, again for his personal benefit and to the specific
detriment of Robert H. Kalbach, Sr., Gerald L. Hempt flagrantly breached his fiduciary duties.
.
He breached his duty of loyalty to Robert H. Kalbach, Sr.; he engaged in self-dealing; he
violated his duty to deal impartially with all beneficiaries; he failed to use reasonable care and
skill; he acted at all times in a position of multiple conflicts of interest. For all of these reasons,
· the Objections of Robert H. Kalbach, Sr. should be upheld and the requested relief ordered.
Respectfully submitted,
.
By:
METTE, EVANS & WOODSIDE
~-1-~
Howell C. Mette, Esquire
Sup. Ct. I.D. No. 7217
Daniel L. Sullivan, Esquire
Sup. Ct. I.D. No. 34548
Vicky Ann Trimmer, Esquire
Sup. Ct. I.D. No. 49679
.
.
.
DATED: S( ~ 104
3401 North Front Street
P. O. Box 5950
Harrisburg, P A 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
Attorneys for Kalbach Objectors
I
.
.
· CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
. Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg,
Pennsylvania, with first-class postage, prepaid, as follows:
. Ivo V. Otto III Esquire Donald Kaufman, Esquire
MARTSON, DEARDORF, McNEES, WALLACE & NURICK
WILLIAMS & OTTO 100 Pine Street
10 East High Street P.O. Box 1166
Carlisle, P A 17013 Harrisburg, P A 17108-1166
. Joel Zullinger Esquire
ZULLINGER & DAVIS
14 North Main Street
Suite 200
Chambersburg, PA 17201
.
Respectfully submitted,
METTE, EVANS & WOODSIDE
. 1~-1- ~.
By:
Howell C. Mette, Esquire
Sup. Ct. J.D. No. 7217
Daniel L. Sullivan, Esquire
. Sup. Ct. J.D. No. 34548
Vicky Ann Trimmer, Esquire
Sup. Ct. J.D. No. 49679
3401 North Front Street
. P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
. DATED: '!l/aeJol.( Attorneys for Kalbach Objectors
397132vl
.